By Robert L. Ellis, Hennis, Rothstein & Ellis LLP
No, you can’t legally shoot one down.1
That answers the most frequently asked question, but drones, or small Unmanned Aerial Systems (UAS), are beginning to appear everywhere, raising more questions and unique legal challenges.2 Enacting state or local regulations regarding these new devices, or advising clients regarding them, requires an understanding of the complex mix of federal, state and common law that applies whenever aviation is involved, and how the law is changing to adapt.
The new high-tech drones
Until recently, the only small pilotless aircraft in private hands were radio-controlled (RC) models flown by hobbyists, generally within a few
hundred feet of the person with the transmitter. Nonetheless, the Federal Aviation Administration (FAA) recognized early that even “model aircraft can at times pose a hazard to full-scale aircraft in flight and to persons and property on the surface,” and in 1981 issued model aircraft operating standards.3 RC aircraft never presented much of a safety issue to other airspace users, but the sudden appearance of numerous consumer-product drones that can fly for thousands of feet in any direction (including up) while being virtually impossible for pilots to see, is creating a flight safety nightmare. The risk of catastrophic accident is real. As the FAA points out, “we have witnessed a huge influx of casual users, people who fly UAS for entertainment or recreation…. The vast majority of these operators do not have the basic aviation training or experience required
for pilots of traditional aircraft. They have no knowledge that they may be flying in controlled airspace. Some may have no recognition that their actions could have serious consequences. They are simply having fun with a toy.”4
Drones are here to stay—not as toys, but as remarkably useful devices capable of performing tasks that have been prohibitively expensive or impossible. Almost everyone has seen examples of stunning drone-based, high-definition videos. News reports regularly describe creative new ways drones are being used: search and rescue, accident investigation and insurance adjustment, rapid blood and transplant organ delivery and high-definition 3-D mapping. Drones can be programmed to fly the same ultra-precise route repeatedly, enabling automated up-close inspection of power lines, bridges, pipelines and wind turbines, as well as real-time, multi-sensor mapping of farms right down to individual plants.
In the not-too-distant future, drones will have two-way communications capability, enabling restaurants to take lunch orders from workers—and then deliver the lunches. Police will be able to patrol neighborhoods, remotely investigate crime scenes, question suspects and pursue them if necessary, and journalists will be able to conduct live on-scene interviews moments after an event occurs. The FAA classifies a UAS as “small” (sUAS) if it weighs up to 55 pounds—far larger than the typical photography drone—and companies are eager to put these “small” drones to work.5 The FAA has already received numerous applications for permission to start drone-based package delivery.
Federal aspects of drone law
The laws and regulations applicable to drone flights are almost entirely federal. The federal government “has exclusive sovereignty of airspace in the United States”6 and the FAA sets all standards for flight safety,7 “preempting the entire field from state and local regulation.”8
Despite its exclusive responsibility for air safety, the FAA was blindsided by the advent of small drones; its attempts to address UAS flight safety issues had been focused on large remotely-piloted aircraft that would be in contact with air traffic controllers.9 Nonetheless, since the FAA’s job is “to provide the safest, most efficient aerospace system in the world,”10 it has enthusiastically embraced the task of integrating small drones into the mix, and readily acknowledges that it has some catching up to do.11
Current federal regulation of drones
The primary federal regulation regarding UAS operations was issued in 2007 and is still in force today: “[N]o person may operate a UAS in the National Airspace without specific
authority.”12 In 2012 Congress passed the “FAA Modernization and Reform Act” (FMRA)13 requiring the FAA to come up with comprehensive drone regulations by September 2015; the FAA deliberately missed that deadline in order to take into account the new small drones, as well as the large number of comments and suggestions from the public regarding them. In the meantime the FAA, using its right14 to grant exemptions and waivers, has implemented a two-tier approach to enable drone owners to obtain that “specific authority” to fly until the comprehensive regulations are issued.15
The first tier is for commercial UAS operations—anything that is even slightly business-related—and is a three-step process. First the owner must apply for and receive an “N-number” aircraft registration for the drone, just as if it were a full-size aircraft.16 Since full-size passenger aircraft are subject to stringent airworthiness and inspection requirements that are unnecessary for drones, the second step is for the owner to obtain a special Section 333 exemption from those requirements.17
A Section 333 petition is not a mere formality; it is exacting and requires detailed information about both the specific drone to be used and the pilots who will fly it. Only licensed pilots are permitted to fly drones for commercial purposes.18 Each petition is carefully scrutinized. Turnaround time is about six months. The third step is to obtain a “certificate of authorization or waiver” (COA) to fly in specifically-described airspace.19 The COA application can be submitted at the same time as the Section 333 petition. If the operator will never fly the drone more than 200 feet above the ground, no separate COA application is needed since every 333 exemption comes with an automatic COA for flights up to that altitude.
As a practical matter, any commercial organization or individual who owns a drone must obtain an N-number, a Section 333 exemption and a COA in order to legally fly it—with one curious exception:20 The FAA is statutorily prohibited from regulating “model aircraft” flown for “hobby or recreational use.”21 This carve-out was intended to protect RC hobbyists, but instead created confusion: The term “model aircraft” is defined so broadly that any drone can qualify, but whether a drone constitutes a “model aircraft” depends on how it is being flown.22 The exact same drone flown along the exact same route, minutes apart, might be an exempt, unregulated “model aircraft” that can be legally flown by a child for one flight, and a nonexempt sUAS requiring full compliance with registration, exemption, and pilot requirements for the other.
Amazingly, while the FAA routinely imposes altitude restrictions for flights under a COA,23 it is statutorily barred from imposing altitude restrictions for “recreational” flights.24 Nonetheless, because the FAA is permitted to pursue enforcement actions against anyone, even hobbyists, who create a danger to flight safety,25 the FAA can impose flight restrictions on recreational drone operators,26 and has imposed a de facto altitude restriction of 400 feet for recreational flights.27
The “recreational use” exception makes little sense from a flight safety perspective. For business owners it also creates a strong incentive to pretend that a flight is for “recreational use.” It is likely that the “recreational use” exception and the FAA’s inability to regulate drone recreational flights will be substantially changed. In the meantime, all the FAA can do is try to scrutinize flights, and if a “recreational” flight is really business-related, the FAA will treat it as an “operation of a UAS in the National Airspace without specific authority.” In such cases, the FAA will usually send a warning letter, but in egregious cases it will institute an enforcement action. The FAA has already fined one company $1.9 million for 65 unauthorized flights over densely populated areas.28
Since the FAA is prohibited from regulating recreational sUAS flights, it has instead issued numerous guidelines and launched a publicity campaign called “B4UFLY” —including a smartphone app—to try to educate the thousands of new drone operators on how to fly safely in the national airspace system.29 It has also decided that a simplified, non-N number registration of all recreational-use drones other than low-end toys is necessary to “help build a culture of accountability and responsibility, especially with new users who have no experience operating in the U.S. aviation system.”30 This is the second tier of the FAA’s approach toward UAS regulation. Registration is mandatory; it costs $5 and can be done online.31
The role of state law and common law
Federal sovereignty over American airspace and federal preemption of aviation safety regulations do not preclude state and local regulation of non-federal aspects of aviation—a principle that also applies to drones. As long as the focus of a law or regulation is not an aspect of aviation that the FAA actively controls (and not an aviation-related area specifically pre-empted by federal statute such as noise limits), there is plenty of room for state and local exercise of police powers.32 In one case, a company that had obtained FAA authorization to tow advertising banners filed a lawsuit challenging a state law that banned aerial advertising. The court viewed the FAA permit as pertaining solely to flight safety, not to advertising regulation, and upheld the law, finding that exclusive federal sovereignty over airspace “does not in and of itself exclude any state regulation of aerial advertising.”33
Using this reasoning, a city could legitimately prohibit advertising by drone within its borders. Even in areas where the FAA is active, states and localities may be able to exercise
concurrent powers. Aircraft titles and registrations are federal, yet state mechanic’s lien laws apply to aircraft and can impair title, and many states impose state-level aircraft registration requirements as well.34 Thus, the federal UAS registration mandate would not preclude a similar state or even local registration requirement. The FAA has imposed insurance requirements on air carriers35 but not on privately owned aircraft, so the field is not preempted, and some states require private aircraft owners to carry insurance.36 They could do likewise for drone owners. State laws not directly related to aviation such as those prohibiting voyeurism, stalking and harassment continue to have full applicability regarding drone operations.
Common law principles can also apply in areas such as private property rights, nuisance and product liability. Regarding private property, caution is in order. The old notion that ownership of land entails ownership of all the air above it was long ago abrogated by statute,37 and all navigable airspace is legally in the public domain.38 Navigable airspace is any airspace in which flight can take place, in some cases right down to inches above the ground.39 Many cases have confirmed that a property owner does not have a cause of action for trespass where a flight is conducted in airspace above the property in compliance with federal regulations. Where a helicopter hovered low over a homeowner’s property while the crew shot video for a news story, the court rejected a trespass claim.40
The same is true for claims that the mere creation or recognition of navigable airspace over private property, or some flights through such airspace, constitute a “taking” for which compensation must be paid.41 Moreover, the FAA has a statutory mandate42 to regulate the safety of “air commerce,” an authority “clearly not restricted to the utilization of ‘navigable airspace.’”43 Thus, any trespass suit regarding drone overflights would be difficult to win without a showing of actual damages. Any purported ban on overflights by a private company or educational institution, or any local ordinance attempting to ban drones from delivering packages, would likely be overturned if challenged.44
What about nuisance suits? A century ago, a court expressed what might be called the “noises of progress” principle when dismissing a property owner’s nuisance claim against a railroad: “A material amount of noise is produced […] by modern civilization.”45 In another early case, the court refused to enjoin a business from staying open late and attracting traffic, pointing out that the recent appearance of automobiles on the roads, including at night, had become normal “but would some years ago have been considered a nuisance.”46 Just as courts in the early 20th century accepted trains and automobiles as the price of progress, it seems likely that courts in the early 21st will accept drones. And just as nuisance lawsuits are still possible against individual automobile owners, so too are they available for use against drone owners, but for a nuisance claim to succeed, the injury must be “real, material, and substantial.”47
Regarding product liability, the “federal government’s regulatory presence… while extensive, leaves room for the States’ traditional role of compensating injuries based on common law products liability standards.”48
Potential for misuse
As has been the case for every new technology, drone technology can be misused. There are already reports of small drones being used to drop contraband into prisons, and there is concern about their potential use to commit a variety of crimes.49 For this and other reasons, the more that drones are used, the more they will be regulated.
The future of drone regulation
The registration requirement is the first step in bringing order to the chaos that currently reigns when it comes to integration of UAS into the national airspace. Future requirements will likely rely heavily on technology rather than operator training since it is unlikely that many hobbyist drone operators will receive adequate training regarding airspace classifications or flight safety rules. Drone manufacturers will be required to equip their products with hard-coded transponders to enable identification and location while in flight, keys or biometrics to ensure that a drone is operated only by an authorized person, GPS-based “geo-fencing” with realtime updates to prevent flight into unauthorized areas, and see-and-avoid technology and automatic flightlogging. Many of these features are already available in some drones.
Staying legal, for now
Anyone who owns a drone must register it with the FAA, and thereafter can fly it without getting in trouble as long as the flight takes place during the day and in good weather, as long as the drone stays at least five miles from airports, doesn’t fly higher than 400 feet, doesn’t fly over crowds or endanger anyone, and as long as the flight is just for fun. Anyone who wants to fly a drone for commercial purposes must apply for and receive an N-number, a Section 333 exemption, and a COA and must comply with federal aviation safety regulations.
Robert L. Ellis is a partner at Hennis, Rothstein & Ellis LLP in Columbus. He is a long-time pilot and aircraft owner, and a short-time drone owner. email@example.com.
1 Notwithstanding a few judges who have acquitted defendants charged under state or local law (usually destruction of property) with shooting down drones, destroying or disabling an aircraft is a federal crime pursuant to 20 U.S.C. §32 – and a drone is unquestionably an “aircraft” as defined in 49 U.S.C. §40102 and 14 CFR 1.1 (a device that is “invented, used, or designed to navigate, or fly in, the air”). To date there has been no reported federal prosecution of anyone for interfering with a drone. Some drone operators whose craft have been shot down or otherwise attacked have sued for damages.
2 Official FAA terminology: “The term ‘unmanned aircraft system’ means an unmanned aircraft and associated elements (including communication links and the components that control the unmanned aircraft) that are required for the pilot in command to operate safely and efficiently in the national airspace system.” FAA Modernization and Reform Act of 2012 (FMRA), P.L. 112-95, §331(8).
3 FAA Advisory Circular (AC) 91-57, “Model Aircraft Operating Standards” (June 9, 1981), p.1. These standards were updated in Sept. 2015 by AC 91-57A to reflect the FMRA’s new definitions of “model aircraft operation.”
4 Deputy FAA Administrator Michael Whitaker, statement before the House Committee on Transportation and Infrastructure, Committee on Aviation, Oct. 7, 2015, p. 2.
5 FMRA §331(6).
6 49 U.S.C. §40103(a)(1).
7 The FAA’s statutory mandate is to “develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace.” 49 U.S.C. §40103(b)(1).
8 Abdullah v. American Airlines, Inc., 181 F.3d. 363, 367 (3d Cir. 1999). (State and local regulation of aviation would create a patchwork of rules that would make a national air transportation system impossible); Command Helicopters, Inc. v City of Chicago, 691 F.Supp. 1148, 1151 (N.D. Ill. 1988)(city ordinance imposing helicopter safety
regulations invalid); Allegheny Airlines v. Village of Cedarhurst, 132 F.Supp. 871 (1955)(village ordinance banning flights below 1000 feet invalid).
9 As recently as two years ago, the FAA still had not noticed small drones: “UAS cannot comply with certain air traffic control clearances, and alternate means may need to be considered (e.g., use of visual clearances); UAS present air traffic controllers with a different range of platform sizes and operational capabilities.... [a]nd some UAS... require manual placement and removal from runways....” FAA, “Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap,” 1st Ed. (Nov. 7, 2013) sec. 2.2.3.
11 “[I]ntroducing sUAS] into the nation’s airspace is an opportunity and a challenge for both the FAA and the aviation community. FAA rules and policies must provide flexibility to accommodate this integration while ensuring the safety of the National Airspace System (NAS).” FAA Notice 8900.291 (Mar. 24, 2015), par.4.
12 FAA, “Unmanned Aircraft Operations in the National Airspace System,” 72 Fed. Reg. 6689 (Feb. 13, 2007).
13 P.L. 112-95.
14 49 U.S.C. §44704.
15 FMRA §332 required the FAA to promulgate new UAS regulations by Sept. 30, 2015. The FAA intends to issue the new regulations, which will be found at 14 C.F.R. Part 107, sometime in 2016. See 80 Fed. Reg. 9544 (Feb. 13, 2015).
16 49 U.S.C. 44711 and 14 CFR Part 47 require all non-recreational UAS operators to register their aircraft via form AC Form 8050-1. See www.faa.gov/licenses_certificates/aircraft_
17 FMRA §333, “Special Rules for Certain Unmanned Aircraft Systems”; 14 C.F.R. §11.81. The petition process is described at www.faa.gov/uas/legislative_programs/section_333/how_to_file_a_petition/. Governmental entities are not required to obtain a §333 exemption.
18 Any type of pilot’s license other than a student license is sufficient. The reason: “UAS operations authorized under Section 333 will only be conducted by airmen with valid airmen certificates, which have been screened by TSA, thereby meeting the statutory requirement in Section 333 for operations to not pose a threat to national security.” FAA, “Public Guidance for Petitions for Exemption Filed under Section 333,” Sept. 25, 2014, p.4.
19 The process is described at www.faa.gov/uas/legislative_programs/section_333/how_to_file_a_petition/. The process can be initiated online at https://ioeaaa.faa.gov/oeaaa/Welcome.jsp (account required).
20 Two other ways to get “specific authority” exist. One is to obtain a Special Airworthiness Certificate pursuant to 14 CFR 21.75(b); another is to obtain a “Restricted Category” type and airworthiness certificate pursuant to 14 CFR 21.25(a)(2) and 21.185. These alternatives are not practical for most operators.
21 FMRA §336(a).
22 FMRA §336(c) defines “model aircraft” as “an unmanned aircraft that is (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”
23 Anyone who receives a COA is automatically permitted to fly an sUAS up to 200 feet above the ground. This “blanket exemption” is described at www.faa.gov/news/updates/newsId=82245.
24 FMRA §336, which prohibits the FAA from regulating recreational flights, contains no exceptions for altitude restrictions.
25 FMRA §336(b); 41 CFR §91.13.
26 For example, the FAA prohibited all flights, specifically including recreational drone flights, from operating within a temporary flight restriction (TFR) area during the Pope’s visit to Philadelphia in Sept. 2015.
27 The FAA advises recreational operators to “follow best practices including limiting operations to 400 feet above ground level,” FAA AC 91-57A (Sept. 2, 2015), p. 3, but seems intent on enforcing this limit. As one FAA official put it: “Watch what happens if we see a recreational flight that goes above 400 feet.”
28 “FAA Proposes $1.9 Million Civil Penalty Against SkyPan International for Allegedly Unauthorized Unmanned Aircraft Operations,” FAA Press Release, Oct. 6, 2015.
29 See www.faa.gov/uas/b4ufly/.
30 U.S. Transportation Secretary Anthony Foxx, speech and press release, Oct. 19, 2015.
31 All UAS weighing more than 250 grams must be registered at www.faa.gov/uas/registration. The $5 fee is waived until Jan. 20, 2016. FAA, “Registration and Marking Requirements for Small Unmanned Aircraft,” RIN 2120-AK82 (Interim final rule, Dec. 21, 2015). This 211-page rule is available at www.faa.gov/news/updates/media/20151213_IFR.pdf. The registration requirement is explained in Unmanned Aircraft Systems (UAS) Registration Task Force (RTF) Aviation Rulemaking Committee (ARC), “Task Force Recommendations Final Report” (Nov. 21, 2015), www.faa.gov/uas/publications/media/rtfarcfinalreport_11-21-15.pdf.
32 The Federal Noise Control Act of 1972, 42 U.S.C. §4901, pre-empts the entire field of aircraft noise regulation. See City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624 (1973).
33 Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1116 (9th Cir. 2002).
34 The Federal Aviation Act, 49 U.S.C. §§ 1301(2) and 1404(c), requires that all aircraft title documents be federal, and preempts state laws permitting aircraft ownership transfer without documentation. Philko Aviation, Inc. v. Shacket, 462 U.S. 406 (1983). Federal law, 49 U.S.C. §44107, and
federal regulations, 47 C.F.R. Part 47, require federal registration of all aircraft as well. Nonetheless, state aircraft registration laws for purposes of taxation (to support non-federal aviation infrastructure such as airport access roads) are not viewed as preempted, nor are state mechanics’ lien laws. See Aeronautical Center Counsel opinion letter, 46 Fed. Reg. 61,528 (1981). Federal law also grants states and localities the right to “collect a tax on or related to a flight of a commercial aircraft . . . if the aircraft takes off or lands in the State or political subdivision as part of the flight.” 49 U.S.C. §40116(c).
35 49 U.S.C. §41112(a).
36 Eleven states have some type of small aircraft insurance requirement. U.S. Gov’t Accountability Office, “General Aviation: Observations Related to Liability Insurance Requirements and Coverage for Aircraft Owners” (Sept. 2015).
37 The Air Commerce Act of 1926, 44
Stat. 568, established the principle, now
codified at 49 U.S.C. §40103(a)(1).
38 “It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe . . . has no place in the modern world. The air is a public
highway . . . . Were that not true, every transcontinental flight would subject the operator to countless trespass suits.” U.S. v. Causby, 328 U.S. 256, 250-261 (1946).
39 “Navigable airspace” is defined in 49 U.S.C. §40102(a)(32) as “airspace above the minimum altitudes of flight prescribed by regulations [but also] including airspace needed to ensure safety in the takeoff and landing of aircraft.” More simply put: “The FAA is responsible for the safety of U.S. airspace from the ground up.” FAA, “Busting Myths about the FAA and Unmanned Aircraft” (Feb. 26, 2015), www.faa.gov/news/updates/?newsId=76240.
40 Bevers v. Gaylord Broadcasting Co. L.P., No. 05-01-00895-CV, 2002 WL 1582286 (Ct. App. Tex. 2002).
41 To constitute a “taking,” there must be “direct, immediate, and substantial interference” with the use of land. See, e.g. Breneman v. United States, 57 Fed. Cl. 571, 580 (2003).
42 49 U.S.C. §44701(a).
43 Hill v. National Transportation Safety Board, 886 F.2d 1275, 1279 (10th Cir. 1989).
44 If the FAA does not issue uniform regulations regarding particular types of flights, local communities can enact ordinances regarding them. Gustafson v. City of Lake Angelus, 76 F.3d 778 (6th Cir. 1996). However, if a local ordinance has the effect of directly regulating flight operations, federal law will preempt it. City of Cleveland v. City of Brook Park, 893 F. Supp. 742, 750-751 (N.D. Ohio 1995).
45 Dean v. Southern Rwy. Co. in Mississippi, 112 Miss. 333, 73 So. 55, 56 (Miss. 1916).
46 Thoenebe v. Mosby, 257 Pa. 1, 101 A. 98 (1917).
47 Elmer v. S.H. Bell Co., ___F. Supp.3d____ 2015 WL 5102707 *9 (N.D. Ohio 2015)(citing Eller v. Koehler, 68 Ohio St. 51 (1903).
48 Morris v. Cessna Aircraft Co., 833 F.Supp.2d 622, 634 (N.D. Tex. 2011) (relating to federal standards for aircraft design and manufacture). There is a diversity of views on this issue among the circuits.
49 Here too, federal law does not preempt state law. See, e.g. the Florida Contraband Forfeiture Act, F.S.A. §932.701, which defines “contraband” to include “Any . . . aircraft . . . used or attempted to be used as an instrumentality” of crime.
This article was originally published in the January/February 2016 issue of Ohio Lawyer magazine.